The case of Mubashar Ali Shah v. Muhammad Sharif reported in 2024 MLD 1508 highlights various important legal principles and procedural issues, particularly in the context of partition suits under the Punjab Partition of Immovable Property Act, 2012. This case involved Civil Revision No. 58370 of 2021, wherein the central issues revolved around the non-impleadment of all co-owners as defendants, the competency of the suit without a claim of mesne profits, and the evidentiary value of hearsay testimony in civil proceedings.
Let us delve into each of the legal aspects involved in the case, their implications, and the judicial reasoning that led to the dismissal of the petitioner’s case.
1. Background and Facts of the Case
The petitioner, Mubashar Ali Shah, filed a suit for the partition of immovable property under the Punjab Partition of Immovable Property Act, 2012. The primary contention of the petitioner was that he sought a division of the jointly owned property. However, he failed to implead all the co-owners of the property as defendants in the suit. Furthermore, the petitioner did not claim mesne profits in his suit.
The lower courts, upon considering the evidence and procedural aspects of the case, dismissed the suit on the ground that the non-impleadment of all co-owners rendered the suit incompetent. Additionally, the courts noted that the petitioner’s evidence was largely based on hearsay, and the petitioner himself did not appear as a witness to substantiate his claims. This ultimately led to the dismissal of the suit, a decision that was upheld by the revisional court under Section 115 of the Code of Civil Procedure (C.P.C).
2. Punjab Partition of Immovable Property Act, 2012
The Punjab Partition of Immovable Property Act, 2012 governs the process of partitioning immovable property among co-owners in Punjab. The Act outlines the procedural requirements and conditions that must be met for the proper adjudication of a partition suit.
In this case, one of the key issues was whether the failure to implead all co-owners as defendants rendered the suit incompetent. Under the law, it is a well-established principle that in a partition suit, all co-owners must be made parties to the proceedings to ensure that their rights are properly adjudicated. This is because a partition suit affects the proprietary rights of all co-owners, and any decision made in the absence of any of them could potentially affect their interests.
3. Non-Impleadment of All Co-owners as Defendants
The failure of the petitioner to implead all co-owners as defendants was a significant procedural lapse. The courts consistently held that a partition suit cannot be maintained unless all co-owners are made parties to the proceedings. This is because the subject matter of the suit involves jointly owned property, and every co-owner has a legal right to be heard before any decree affecting their proprietary interest is passed.
The courts noted that the petitioner’s failure to implead all co-owners was a fatal defect that went to the very root of the case, making the suit incompetent. The courts relied on the principle of non-joinder of necessary parties, which dictates that all individuals who have a direct interest in the subject matter of the suit must be made parties. The non-impleadment of necessary parties could render any decision made by the court as incomplete and unenforceable against those who were not party to the proceedings.
4. No Claim for Mesne Profits
Another crucial issue in the case was the absence of a claim for mesne profits by the petitioner. Under the Punjab Partition of Immovable Property Act, 2012, a suit for partition may include a claim for mesne profits. Mesne profits refer to the profits or income derived from the property during the period of unlawful possession by one of the co-owners to the exclusion of the others. A claim for mesne profits seeks to compensate the other co-owners for the loss of income during the period of exclusion.
In this case, the courts pointed out that the petitioner did not make any claim for mesne profits, which further undermined the competency of the suit. The court observed that the Punjab Partition of Immovable Property Act, 2012, does not provide for the passing of a preliminary decree without a claim for mesne profits. Therefore, without such a claim, the suit was deemed incomplete and non-maintainable.
5. Hearsay Evidence and Non-appearance of the Petitioner as a Witness
The evidentiary aspect of the case was also a significant factor in the dismissal of the petitioner’s suit. The petitioner relied heavily on the testimony of PW.1 and PW.2 to establish his case. However, the testimony of these witnesses was found to be based on hearsay evidence, which the courts rightly disbelieved.
Hearsay evidence refers to testimony in which the witness does not have direct knowledge of the facts of the case but rather repeats information that was told to them by someone else. In legal proceedings, hearsay evidence is generally considered inadmissible unless it falls within certain exceptions, as it is deemed unreliable and lacks the necessary firsthand knowledge to be considered credible.
The courts found that the testimony of PW.1 and PW.2 was based on hearsay and, therefore, could not be relied upon to establish the petitioner’s claim. Furthermore, the petitioner himself did not appear in the witness box to testify on oath. The courts observed that the non-appearance of the petitioner as a witness significantly weakened his case. It is a well-established principle in civil law that a party who fails to present themselves as a witness without any justifiable reason may face adverse inferences being drawn against them.
In this case, the petitioner’s failure to testify on oath and submit himself for cross-examination undermined the credibility of his claims. The courts held that the evidence presented by the petitioner lacked cogency and was not confidence-inspiring.
6. Concurrent Findings of the Courts Below
The revisional court, while dismissing the civil revision petition, relied on the principle that concurrent findings of fact recorded by the lower courts cannot be disturbed in the exercise of revisional jurisdiction under Section 115 of the C.P.C., unless there is a gross miscarriage of justice or the findings are based on misreading of evidence or a violation of law.
In this case, the courts below had thoroughly evaluated the evidence and reached the conclusion that the petitioner had failed to establish his case. The revisional court found no reason to interfere with the concurrent findings of the lower courts, as the decisions were based on a proper appreciation of the facts and the law.
7. Legal Implications and Conclusion
The case of Mubashar Ali Shah v. Muhammad Sharif serves as an important reminder of the procedural and evidentiary requirements in partition suits. The non-impleadment of necessary parties, such as all co-owners in a partition suit, is a fatal defect that can render the suit incompetent. Furthermore, the absence of a claim for mesne profits under the Punjab Partition of Immovable Property Act, 2012, can also lead to the dismissal of the suit.
From an evidentiary perspective, the case highlights the importance of presenting reliable and firsthand testimony. Hearsay evidence, unless falling within certain exceptions, is generally inadmissible in court. Moreover, a party’s failure to appear as a witness and testify on oath may lead to adverse inferences being drawn against them.
The revisional court’s decision to uphold the concurrent findings of the lower courts is consistent with established legal principles. The courts rightly disbelieved the hearsay evidence presented by the petitioner and concluded that the petitioner had failed to prove his case through cogent, credible, and trustworthy evidence.
In conclusion, this case reaffirms the principles of procedural propriety and evidentiary reliability in civil litigation, particularly in the context of partition suits. It underscores the need for litigants to ensure that all necessary parties are impleaded in the suit and that their evidence is based on firsthand knowledge, free from hearsay